Thursday, January 31, 2013

Please join me and our host Todd Dupont for tonight's Reasonable Doubt where our special guest will our friend and criminal defense attorney Casie Gotro. Casie has been practicing criminal defense for about ten years now and has built a successful practice with some amazing case results. We look forward to her perspective.

As always, you can tune in and catch us live streaming at 8:00 p.m. tonight by clicking here.

Saturday, January 26, 2013

Every couple of years or so, the issue of the Harris County Criminal Justice System's methods of appointing attorneys for indigent defendants comes under scrutiny. I'm glad that it does. Scrutiny leads to improvements (hopefully) and in the past, those improvements have ultimately included testing qualifications for appointed attorneys as well the establishment of the Harris County Public Defender's Office.

Robb Fickman

However, problems -- massive problems -- persist and we are, once again, taking a hard look at the way criminal court appointments are made. Most recently, Robb Fickman published an article on his blog about the massive number of cases being handled by a relatively small group of attorneys. He linked to this list which gives a top-to-bottom listing of the distribution of appointed criminal cases from 2011.

I find the list to be extremely interesting because it is very well done. There is a breakdown between misdemeanor, felony and juvenile appointments by attorney. Also included is the ideal number of attorneys each caseload should require as recommended by the National Advisory Commission. The numbers are startling and unsettling.

Before I delve into the numbers, I'd like to point out a couple of things about how appointments work in Harris County -- specifically how Felony appointments work.

First off, all attorneys who accept felony appointments in Harris County have to take a test to be on the list. Once they pass that test, they are certified to handle either State Jail/3rd Degree cases, 2nd Degree cases, or 1st Degree cases. Those who are appointed on Capital cases have more stringent requirements that I'm not going to address for the purposes of this particular blog post. In my case, I am 1st Degree certified, which means I can be appointed on any non-capital felony.

As an attorney who will take felony appointments, I have access to a calendar where I can put in a request or notice of availability to take appointments. I can mark on the calendar that I am available to take an individual case appointment or that I am available to be the "Attorney of the Day" for a court. A court coordinator who needs to bring in a court appointed attorney will bring up a computer screen with (I believe) ten attorneys' names and the coordinator can then make a selection out of those names to give the appointment to.

If you are assigned to take on an individual case appointment, the maximum number of new cases you can get assigned to each day is two. If you are working on pre-existing appointed cases, the most you can get paid for is four a day (NOTE: you can have more cases on any given day, but you will only be paid for four of them). If you are signed up to be an Attorney of the Day, you are paid a flat daily fee for handling up to five cases for the court per day. More often than not, courts appoint attorneys for the entire week, meaning a lawyer could end up with 25 new cases in one week.

A few weeks ago, Robb Fickman announced that he was highly concerned about the number of cases some attorneys were taking appointments on. At that time, he said he would be "naming names" of attorneys who were overloading themselves with cases, and I wondered where I would fall on that list. I take a pretty even split of retained cases and appointed cases and I generally try to keep my active number of cases somewhere around 50 at any given time. If I'm getting too far ahead of that, I take my name off of the appointments list. If I get significantly below, I put my name back in. I never really pay attention to how many cases I handle a year. I pay attention to having a workable amount at any given time. Some cases don't take very long to work out. Some can pend for over a year.

As it turns out, I'm doing just fine on the list. I came in at under the recommended levels for how many cases any given attorney should be handling. Many of my brethren and sistren in the Defense Bar did not do the same. The top four most-appointed attorneys are each working caseloads that are recommended to be handled by 4.1, 3.5, 3.2 and 3 attorneys respectively. Number one on the list received over 800 cases in 2011.

The common denominator in those Top Four attorneys is they are all Spanish-speaking attorneys. Eight of the Top Ten are Spanish speakers, as well. As my friend and colleague Jackie Carpenter pointed out in an e-mail, I believe that a tremendous contributing factor in why so few attorneys are receiving so many cases is due to the relatively low number of Spanish-speaking attorneys on the appointed lists.

Living in the largest city in Texas means that there is going to be a large number of crimes committed by people who don't speak English. To effectively represent a person, in my opinion, you absolutely must be able to communicate to them in a language you both understand. In my conversation with Robb about this latest crisis, he offered the solution of having more interpreters available. I respectfully disagree that this solution would work. It is easy to have an interpreter meet you in court to talk to your client. However, it is not easy to have one join you every time you want to go talk to your client at the jail or go interview witnesses that require a translator, as well.

The real answer is that there is a tremendous need for more Spanish-speaking attorneys who are willing to take court appointments. It is my understanding that there are currently less than ten Spanish-speaking attorneys who do 1st Degree appointments in Harris County. Given the size of our county, that is staggering.

There needs to be a push to get more attorneys qualified to handle serious cases where there is a language barrier. There is already a small financial incentive for attorneys that speak a foreign language (I believe). That incentive should be increased.

Additionally, those Spanish-speaking attorneys who thus far are not qualified to handle higher-level felonies should be given the opportunity to get on that list by retesting or sitting second chair to get enough trial credit to qualify. The rules of appointments in Harris County aren't unchangeable. Recently, a judge who lost her bench in November was allowed to be on the First Degree appointment list despite the fact that she never passed the appointment examination in the first place. If an exception can be made to help out a former judge, surely something can be done to increase the number of qualified Spanish-speaking attorneys on the list.

Furthermore, careful attention needs to be paid to what kind of cases those attorneys who do, in fact, speak Spanish are being appointed to. For instance, if a 1st Degree qualified Spanish-speaking attorney is being appointed to an English-speaking State Jail Felony defendant, resources are being wasted.

Fickman suggested there be a change to the way appointments are generally made, and I don't disagree with the majority of his plan. However, in my opinion, the language barrier issue amongst appointed attorneys is the largest contributing factor of overloaded attorney appointments.

Ultimately, it is a supply and demand issue. Until it can be resolved, I don't think there is going to be a significant change in the stats we have been seeing.

Thursday, January 24, 2013

Please join me and our host, Todd Dupont for tonight's episode of Reasonable Doubt, where our guest will be our friend and fellow defense attorney, Carmen Mae Roe. Getting Carmen to appear in public with either me or Todd, let alone go on television is a major accomplishment, so I hope you will tune in. We plan on talking about the differences that trial lawyers have to make during a trial and how it applies in the appellate world.

As always we will be on at 8:00 p.m. and you can catch it live streaming by clicking here.

Wednesday, January 23, 2013

Although all of the newly elected judges from the 2012 elections have been officially sworn in and performing their judicial duties since January 1st, the ceremonial component of their jobs can be held at a later date.

This year there are six new judges who took (or, in the case of Judge Brock Thomas, re-took) the Bench: Judges Stacey Bond, Ryan Patrick, Kristin Guiney, Brad Hart, Brock Thomas, and Renee Magee.

My understanding is that the ceremony for all of the Investitures will take place in the Ceremonial Courtroom on the 20th floor of the Criminal Justice Center, with receptions to follow in the respective Judges' courtrooms.

I missed the opportunity to do a post on Judge Magee's investiture. She was sworn in on January 11th. I'm sorry I didn't give notice of it in advance.

Judge Bond has her Investiture today (January 24th) at noon.

UPDATE: Judge Thomas is having his Investiture tomorrow (January 25th) at 11:00 a.m.

Judge Hart is scheduled for Friday, February 1st at one o'clock. I am very honored to say that I've been invited to speak at his Investiture.

Judge Patrick has yet to schedule his.

Judge Guiney, in what I think is a very sweet gesture of friendship, has postponed hers until our good friend Eileen Guerinot Bogar can be in attendance. The good news is that the projected date for that is late February of this year.

Yesterday, I was assigned a First Degree Felony case against Rachel Palmer.

In my dealings on the case with Rachel she was professional, courteous, and actually, friendly. I hope that (given the history between us exhibited on this blog) I reciprocated that professionalism.

For those of you who have followed this blog over the past five years, you should recognize that I have never tried one of my cases through the blog and I have never criticized or commented on someone I was trying a case against. I don't believe in that. I believe that cases should be tried in courtrooms.

In the past, I have made comments about Rachel and I have allowed comments on the blog about her.

They stop today.

You can write in, but I'm not going to post any comments regarding her.

The work I do as a lawyer -- whether I win or lose -- will be based on what happens in the courtroom and not the Internet.

I genuinely appreciate how Rachel handled the case on our first appearance yesterday and I look forward to dealing with her on this case (and any other cases that arise) in the future.

Tuesday, January 22, 2013

At the end of last week, I had a sudden onslaught of e-mails and questions about the Harris County District Attorney's Office recent decision to abolish the Animal Cruelty Division. I got a call for commentary from a local reporter. My wife asked me about it because she had received an email from Barrio Dogs, a stray dog advocacy group she is a member of. Another friend asked me about it because she got an e-mail from the SPCA.

My response was the same to everyone: Calm Down.

The structure of the District Attorney's Office has absolutely nothing to do with what crimes they will or will not prosecute. Mike Anderson made it very clear when he was running for Office that as long as a law is on the books, he plans on prosecuting it. Just because he dissolves a particular division doesn't mean he is going to cease trying those types of cases.

As I pointed out to the reporter I spoke to, Pat Lykos was a savvy politician and she knew that you just couldn't go wrong by promoting a division that everyone could get behind. She touted the fact that she had an Animal Cruelty Division at the District Attorney's Office and animal lovers across the county rejoiced.

Who wouldn't get behind the idea of a specialized division that prosecuted the type of people who hurt animals?

But here's the deal, folks -- you don't have to have a specialized division to prosecute every crime.

There are certain types of crimes that necessitate a specialized division to handle them. White Collar crimes demand prosecutors that know how to interpret voluminous financial records. Child Abuse crimes demand prosecutors that know how to interpret forensic examinations of children and know how to deal with child witnesses. Vehicular crimes demand prosecutors that can understand accident reconstruction reports and intoxilyzer results.

In other words, specialized divisions of the District Attorney's Office should be based on those types of crimes that demand specialized knowledge.
Prior to 2006, there wasn't a specialized division that handled animal cruelty. The rank and file prosecutors of each court handled those types of cases. It was just part of the repertoire of what we all handled in the court. If someone harmed an animal, a prosecutor tried the case. They were straight-forward and not all that difficult to handle.

As it turns out, getting fired up about prosecuting people who hurt animals is not that difficult, either.

I understand that it is easy to get alarmed when an animal advocacy group announces that Mike Anderson's District Attorney's Office is abolishing the Animal Cruelty Division. The reality, however, is that he is trying to stabilize the financial disaster that he inherited from his predecessor. Part of that plan is consolidating specialty divisions and keeping the courts running effectively.

My advice to those who are worried about the ramifications of the dissolution of the Animal Cruelty Division is simple: just hang on for a minute. If you feel that people are getting away with harming animals because of this decision, let's talk then. I don't think that's going to happen.

In the meantime, don't make the snap decision that a shuffling of personnel means the failure to prosecute a crime that is near and dear to so many of our hearts.

Thursday, January 17, 2013

Please join me and our host Todd Dupont for tonight's Reasonable Doubt where our guest will be former-HCCLA president, Defense Attorney extraordinaire, self-proclaimed Czar of Provocation, and now Blogger Robb Fickman. Robb is a frequent guest of the show but hasn't been on in several months. I am certain that he will have quite a bit to say and he is always quite entertaining.

As always, you can tune in to watch it live streaming at 8:00 p.m. by clicking here.

Wednesday, January 16, 2013

Last Friday, the District Attorney's Office released the first office roster under Mike Anderson, thus completing the first major wave of personnel assignments of his administration. The process began with naming his First Assistant and Bureau Chiefs in December and was completed with naming the new Felony Chiefs and Felony Twos last week.

As with every time the Office makes a lot of moves and promotions, there are compliments and criticisms of what was done and why. In my personal opinion, the moves and promotions run from outstanding and inspired to ill-advised and poor -- and everywhere in between. I'm not going to specify my thoughts on individual moves.

The three words that seem to encapsulate the theory behind the promotions are: Seniority Seniority Seniority.

As with all transitions between two administrations, there were some people who did not have their contracts renewed. In this case, there were six prosecutors who were not renewed. I'm not naming them here. I knew five of them personally, and they are all friends. I'm sorry to see them go. I can sympathize with what they are going through and I feel confident that they will all do just fine in the private sector.

Virtually all of the upper level hires by Lykos did not ask to have their contracts renewed and left on December 31st. Two others were reassigned to positions that they apparently did not want and they subsequently resigned.

And yes, the one person that everyone assumed would be terminated has ironically been the last remaining holdout of the Lykos Administration. Rachel Palmer remains on the job as an Assistant District Attorney.

Contrary to popular opinion, I'm not privy to the rationale behind this but I have my guesses. I have heard from reliable sources that there was virtually nothing documented in Rachel's personnel file over the past four years by her supervisors. If you'll remember, Lykos stopped doing evaluations fairly early on into her tenure. My guess is that if her contract had not been renewed, there would have been a lawsuit forthcoming saying she had been terminated for exercising her 5th Amendment right.

Her continued stay at the Office has caused some grumblings by many who watched her during the 185th Grand Jury investigation. However, as of next Monday, Rachel will be returning to the Trial Bureau as a Felony Two to be given the same workload as all of the other prosecutors at that level. Her extended tenure as Deputy Dawg and in Writs is over. She will be given a fair chance, but the cushy positions that Lykos handed her for four years seem to be over with.

As I mentioned above, there are going to be criticisms of the moves. That's pretty much how I remember it when I was at the Office. Some of the comments on the blog have been very critical. I'll publish those comments (within reason), but they usually have me rolling my eyes.

Tuesday, January 15, 2013

UPDATE: The disk given to Eric for uploading was damaged which is why the upload did not work. We are hoping to get a new one and update this post.

I used to be much more diligent about posting Reasonable Doubt episodes on the blog. However, the long-haired hippie that I used to download the DVDs to VIMEO so that I could put them on the blog has gotten a little lax in recent months.

Luckily, Eric Devlin knows how to do it and hopefully will help me out in the future with it.

I just sat down to write a quick blurb about tonight's Reasonable Doubt and I saw on my blogger home page that I had reached my 1,000th post on this blog.

I wish I could say that it seems just like yesterday when I wrote my first post, but quite frankly it seems like another lifetime ago when this blog started.

From the first post to this current one, I never would have imagined how much I have enjoyed writing and talking about what we all do every day. Some posts have been interesting and well-written, I hope. The majority have probably fallen way short of that description. The comments have always been, in my opinion, the most entertaining aspect of it.

Thanks to everybody who has participated in reading and commenting on the blog. Obviously, without you guys, I probably wouldn't have written for more than a week. Thanks for the insights and the corrections and the laughs.

Most importantly thanks for helping me illustrate the jobs that we all do at the Harris County Criminal Justice Center. No matter what role you have in the System, I can't think of a more fascinating profession than the one we have.

Wednesday, January 9, 2013

Brad Hart will be sworn in tomorrow as Judge of the 230th District Court by Judge Marc Brown. He asked me to let everyone know that his formal swearing in will take place at his ceremonial Investiture in the near future.

Tomorrow's event will be so he can begin his duties as judge immediately and the Investiture will be when the friends and supporters are all invited to attend.

Brad is very touched and honored by the support and well wishes he has gotten this week and didn't want anyone to think that they missed out on his Investiture when they see him on the Bench tomorrow morning.

I'll be posting the details on his Investiture (as well as for all the new judges) as they become available to me.

As I noted in my earlier post about Judge Hill, I think she was an amazing jurist and I'm sorry to see her go. However, the leadership that she will provide to the District Attorney's Office make that loss worthwhile. Having Brad take her place on the bench will help ease that transition, as well.

Brad was the best choice for the bench, in my humble opinion. He is regarded by his fellow prosecutors as well the Defense Bar for having the highest integrity, intelligence and compassion. I don't say it lightly when I predict that in the future he will be considered one of the best judges to ever take the bench.

The road to the bench has been a long one for Brad and I'm so happy that he got there today. Governor Perry made an outstanding decision today.

The tentative plan is for a swearing in on Friday. I will keep you posted on the details.

Sunday, January 6, 2013

I was sad to hear yesterday of the passing of Anita Magidson, wife of U.S. Attorney and former-District Attorney Ken Magidson. My sympathy and condolences go out to Ken and their family.

I did not know Mrs. Magidson, but had heard many wonderful things about her from people who worked with her at the Office. Whenever someone talked about Ken's time as a prosecutor at the Office, they always talked about how he fell head over heels in love with his wife there. I remember when Ken took over as the interim District Attorney in 2008. Once of the first things he pointed out about why he loved the Office so much was because he had met his wife there.

Brian Rogers wrote a very nice article about Anita Magidson that you can read by clicking here.

Friday, January 4, 2013

I'm getting a lot of messages tonight about a rumor that former District Attorney Pat Lykos is being hired by the Harris County Sheriff's Office as a Major overseeing the Courts Division. If it weren't for the fact that I'm hearing this rumor from so many different sources, I would have dismissed it as silly. However, my most credible sources are saying that they've heard it from their most credible sources.

If Adrian Garcia really did hire Lykos, it is remarkably stupid of him.

First off, to hold the rank of Major, wouldn't Lykos have to be TCLEOSE certified? She hasn't been certified in 35 years. Is there a physical component to getting re-certified? If so, I can't wait to see her on the obstacle course. She's 70 years old now and still seems intent on forcing herself on the public.

More importantly, Lykos has a history of acrimonious relationships with almost everyone she has dealt with professionally -- especially her former employees at the Harris County District Attorney's Office. The race against Mike Anderson was a bitter one, and she retaliated after her defeat by refusing to allow him into the building until after 5:30 every day during the transition.

Hiring Pat Lykos would be the political equivalent of Garcia giving the entirety of the District Attorney's Office the middle finger.

On the morning of January 1st, I got up around 9:00, put on a suit and tie and headed to the South Texas College of Law to watch Mike Anderson be sworn in as Harris County District Attorney.

I wasn't getting sworn in myself -- contrary to popular speculation I wasn't seeking my job back as a prosecutor. I just wanted to see an Office that had meant so much to me in my life put into the hands of a Leader who would do a good job of running it. Obviously, this blog has pretty much been devoted to that goal for the past four years or so.

January 1, 2013 was a day that I have been waiting for since about May of 2008.

I wasn't the only member of the Defense Bar who got up early in the morning on New Year's Day to see Mike Anderson sworn in. In addition to the Harris County prosecutors, investigators, and support staff there to be sworn in, there were plenty of District Attorney Alumni as well. I saw Mike Hinton, Brad Means, Chip Lewis, and Todd Leffler there. Judges Ryan Patrick and Mike Schneider were in attendance, as well.

Judge Denise Bradley gave the introduction and swearing in of Mike. When she introduced him, he got a standing ovation.

Unless you are a former or current prosecutor, I don't think I can really explain how happy the Assistant District Attorneys were to finally have a new boss.

Mike's speech was pretty awesome. Yes, I know I'm a big fan of his and so I'm biased, but it was really inspiring.

He told the prosecutors that being a prosecutor was the best job they would ever have and he wanted them to always feel that. He emphasized that although they may ultimately leave for bigger salaries and nicer cars, he wanted them to always look back on being a prosecutor as the best time in their careers.

He said everyone started with a clean slate -- "even if they had worn a Lloyd Oliver t-shirt."

He said he wanted to mend the fences that had been damaged with law enforcement during the previous administration.

He told them that they should always play by the rules and there should never be any question over whether or not something wasn't disclosed to Defense Counsel. He stated, "You've either got 'em or you don't," and there was never a need to cheat as prosecutor.

He told them that he wanted compassion to be part of their outlook in how they did their jobs.

He said that he would always have their backs -- standing by them when times were tough, and standing behind them, cheering them on, when times were good.

He wrapped up his mission statement by asking those who wanted to go forward with him to please stand and raise their right hand as he administered their oaths.

I was glad I went -- just to see it happen.

Over the past year or so, I've gotten asked the question, "Are you going back?" about a zillion times, it seems. My answer was always pretty much the same. I'm very happy with my life and my job as a Defense Attorney. I have no desire to go back to the Office.

The only thing that made it slightly tempting was that I believed Mike Anderson was a very inspiring leader -- the kind of person you would follow into battle.

About Me

I'm a Criminal Defense Attorney and a former Harris County prosecutor. I've been involved in Criminal Law since I was in college, and I've been practicing in Houston for over 15 years.
Most people never have to come down to the Harris County Criminal Justice Center unless they have jury duty. This blog is meant to give the Outsider an inside view.
These are just my opinions. The opinions of the Commenters are also just their opinions and I don't endorse them. But (within reason), I want everybody to be able to have a forum to say what they want to say.